Abidor Et Al v. Napolitano Et Al

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    UNITED STATES DISTRICT COURT

    EASTERN DISTRICT OF NEW YORK

    PASCAL ABIDOR, NATIONAL

    ASSOCIATION OF CRIMINAL DEFENSE

    LAWYERS, NATIONAL PRESS

    PHOTOGRAPHERS ASSOCIATION,

    Plaintiffs,

    against

    JANET NAPOLITANO, ALAN BERSIN, JOHNT. MORTON,

    Defendants.

    MEMORANDUM & ORDER

    10-CV-04059 (ERK)(JMA)

    KORMAN, J.:

    Since the founding of the republic, the federal government has held

    broad authority to conduct searches at the border to prevent the

    entry of dangerous people and goods. In the 21st century, the mostdangerous contraband is often contained in laptop computers or

    other electronic devices, not on paper. This includes terrorist

    materials and despicable images of child pornography.

    Michael Chertoff, Searches Are Legal, Essential, USA Today, July 16, 2008, at A10.

    This case involves a challenge to regulations that were adopted by the Department of

    Homeland Security (DHS), of which Mr. Chertoff was then Secretary, to address and regulate

    the border searches of laptop computers. Specifically, in August 2009, U.S. Immigration and

    Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP)two

    components of DHSissued directives that authorize their agents to inspect any electronic

    devices that travelers seek to carry across an international border into the United States. See

    Defs. Mot. Dismiss, Ex. A, ICE Directive No. 7-6.1 (Aug. 18, 2009) (ICE Directive); Defs.

    Mot. Dismiss, Ex. B, CBP Directive No. 3340-049 (Aug. 20, 2009) (CBP Directive). These

    directives authorize the inspection of any files and images stored on electronic devices, the

    performance of searches on the electronic devices, the detainment of electronic devices for a

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    reasonable time to perform such searches, and the copying of stored information to facilitate

    inspection. These activities may be undertaken without reasonable suspicion that the electronic

    devices contain materials that fall within the jurisdiction of CBP or ICE.

    Plaintiffs bring both facial and as-applied challenges to these directives. They allege that

    the directives purport to authorize unreasonable searches and seizures and operate to chill

    protected speech. Plaintiffs argue that these searches violate the constitutional rights of

    American citizens to keep the private and expressive details of their lives, as well as sensitive

    information obtained or created in the course of their work, free from unwarranted government

    scrutiny. Compl. 3.

    They seek a declaratory judgment that the CBP and ICE policies violate the First and

    Fourth Amendments. Compl. at 34. They also seek a declaration that the defendants violated

    the rights of Pascal Abidor, the individual plaintiff. Compl. at 34. Along with this declaratory,

    relief they seek to enjoin defendants from enforcing their policies of searching, copying, and

    detaining electronic devices at the international border without reasonable suspicion. Compl. at

    34. They seek the same relief on Mr. Abidors behalf. Compl. at 34.

    The defendants move to dismiss the complaint. They argue, preliminarily, that the

    individual plaintiff, Mr. Abidor, and the two plaintiff organizations, the National Association of

    Criminal Defense Lawyers (NACDL) and the National Press Photographers Association

    (NPPA), lack standing to bring a facial challenge to the directives. They also argue that

    plaintiffs facial and as-applied challenges fail to state a claim upon which relief can be granted.

    They rest their argument on the Supreme Courts holding in United States v. Flores-Montano,

    541 U.S. 149 (2004), that searches made at the border, pursuant to the longstanding right of the

    sovereign to protect itself by stopping and examining persons and property crossing into this

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    If the CBP requires technical assistance in order to search the information on the

    electronic device (for example, if the information is encrypted or written in a foreign language),

    [o]fficers may transmit electronic devices or copies of information contained therein to seek

    technical assistance from other federal agencies, with or without individualized suspicion. CBP

    Directive 5.3.2.2; Compl. 17. If the CBP requires subject-matter assistance in order to

    determine the meaning, context, or value of information contained therein, [o]fficers may

    transmit electronic devices or copies of information contained therein to other federal agencies

    for the purpose of obtaining subject matter assistance when they have reasonable suspicionof

    activities in violation of the laws enforced by CBP. CBP Directive 5.3.2.3 (emphasis added);

    Compl. 17. The ICE directive contains a similar reasonable suspicion requirement. ICE

    Directive 8.4(2)(b). Seeking either type of assistance requires supervisory approval. CBP

    Directive 5.3.2.4. The Directive provides that, unless otherwise necessary, if a travelers

    electronic device must be transmitted to another agency, a copy should be made of the

    information stored on it and the copy transmitted instead of the actual device. CBP Directive

    5.3.2.5.

    The Directive provides that copies of information from an electronic device may be

    retained under certain circumstances:

    Officers may seize and retain an electronic device, or copies of

    information from the device, when, based on a review of theelectronic device encountered or on other facts and circumstances,

    they determine there is probable cause to believe that the device,

    or [a] copy of the contents thereof, contains evidence of or is the

    fruit of a crime that CBP is authorized to enforce.

    CBP Directive 5.4.1.1 (emphasis added). The Directive specifically requires the destruction of

    any copies of information contained on a travelers electronic device:

    Except as noted in section 5.4 or elsewhere in this Directive, if

    after reviewing the information pursuant to the time frames

    discussed in section 5.3, there is not probable causeto seize it, any

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    copies of the information must be destroyed, and any electronic

    device must be returned. Upon this determination that there is no

    value to the information copied from the device, the copy of theinformation is destroyed as expeditiously as possible, but no later

    than seven (7) days after such determination unless circumstances

    require additional time, which must be approved by a supervisor

    and documented in an appropriate CBP system of records andwhich must be no later than twenty one (21) days after such

    determination. The destruction shall be noted in appropriate CBP

    systems of records.

    CBP Directive 5.3.1.2 (emphasis added); see also CBP Directive 5.3.3.4 (Except as noted in

    section 5.4.1 below or elsewhere in this Directive, if after reviewing information, probable cause

    to seize the information does not exist, CBP will retain no copies of the information.); CBP

    Directive 5.4.1.6 (Except as noted in this section or elsewhere in this Directive, if after

    reviewing information, there exists no probable cause to seize the information, CBP will retain

    no copies of the information.).

    The Directive permits two categories of information to be retained without probable

    cause. First, CBP may retain only information relating to immigration, customs, and other

    enforcement matters if such retention is consistent with the privacy and data protection standards

    of the system of records in which such information is retained. CBP Directive 5.4.1.2. The

    Directive mentions data collections such as the A-file, Central Index System, TECS, and

    ENFORCE as possible repositories of such information. Id. Second, CBP, as a component of

    DHS, will promptly share any terrorism information encountered in the course of a border search

    with elements of the federal government responsible for analyzing terrorist threat information.

    CBP Directive 5.4.1.4.

    Where the CBP turns an electronic device over to ICE for analysis and investigation,

    ICE policy will apply once it is received by ICE. ICE Directive 6.2; CBP Directive 2.7.

    The CBP Directive requires that, [a]t the conclusion of the requested assistance, all information

    must be returned to CBP as expeditiously as possible, and the assisting federal agency should

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    destroy all copies of the information transferred to that agency, unless the assisting agency has

    independent legal authority to do so. CBP Directive 5.4.2.2-5.4.2.3. The ICE Directive

    contains similar provisions regarding retaining and sharing information, ICE Directive

    8.5(1)(a)-(e), and provides as follows regarding destruction:

    Copies of information from electronic devices, or portions thereof,

    determined to be of no relevance to ICE will be destroyed inaccordance with ICE policy governing the particular form of

    information. Such destruction must be accomplished by the

    responsible Special Agent within seven business days afterconclusion of the border search unless circumstances require

    additional time, which must be approved by a supervisor and

    documented in appropriate ICE systems. All destructions must beaccomplished no later than 21 calendar days after conclusion of the

    border search.

    ICE Directive 8.5(e).

    2. Review and Handling of Privileged or Other Sensitive Materials

    Both the CBP and ICE directives contain special provisions relating to the handling of

    privileged or other sensitive materials. CBP Directive 5.2; ICE Directive 8.6. These include

    legal materials, other possibly sensitive information, such as medical records and work-related

    information carried by journalists, as well as business or commercial information. Id.

    Specifically, both directives note that officers may encounter materials that appear to be legal in

    nature, or an individual may assert that certain information is protected by attorney-client or

    attorney work product privilege. CBP Directive 5.2.1; see also ICE Directive 8.6(2)(b).

    While such materials do not enjoy a per se exemption from a border search, they are subject to

    special handling procedures. Id. In such circumstances, the CBP Directive provides that, if a

    CBP officer suspects that the content of such material may constitute evidence of a crime or

    otherwise pertain to a determination within the jurisdiction of the CBP, the Officer must seek

    advice from the CBP Associate/Assistant Chief Counsel before conducting a search of the

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    material, and this consultation shall be noted in appropriate CBP systems of records. CBP

    counsel will coordinate with the U.S. Attorneys Office as appropriate. Id.

    Other possibly sensitive information, such as medical records and work-related

    information carried by journalists, shall be handled in accordance with any applicable federal law

    and CBP policy. CBP Directive 5.2.2; see also ICE Directive 8.6(2)(c). Moreover, CBP

    officers are advised that [q]uestions regarding the review of these materials shall be directed to

    the CBP Associate/Assistant Chief Counsel, and this consultation shall be noted in appropriate

    CBP systems of records. CBP Directive 5.2.2; see also ICE Directive 8.6(2)(c). Finally,

    [o]fficers encountering business or commercial information in electronic devices shall treat

    such information as business confidential information and shall protect that information from

    unauthorized disclosure. CBP Directive 5.2.3; see also ICE Directive 8.6(2)(a).

    Specifically, [d]epending on the nature of the information presented, the Trade Secrets Act, the

    Privacy Act, and other laws, as well as CBP policies, may govern or restrict the handling of the

    information. CBP Directive 5.2.3; see alsoICE Directive 8.6(2)(a).1

    B. The Border Search of Abidor and His Electronic DevicesOn May 1, 2010, Pascal Abidor, a twenty-six-year-old graduate student at the Institute of

    Islamic Studies at McGill University in Montreal, Canada, was aboard an Amtrak train from

    Montreal to New York City. Compl. 7, 21, 24. At approximately 11:00 a.m., the train

    stopped at a United States Customs and Border Patrol inspection point near Service Port-

    Champlain. Compl. 25. A CBP officer who inspected Abidors customs declaration and U.S.

    passport. Abidor told the CBP officer that he had briefly lived in Jordan and visited Lebanon in

    1The CBP and ICE directives contain slightly different wording with respect to the sharing of information

    that is determined to be protected by law as privileged or sensitive. CBP Directive 5.2.4; ICE Directive 8.6(3).

    The ICE directive provides that such material is to be handled consistent with the laws and policies governing such

    information. ICE Directive 8.6(3). The CBP directive provides that such information will only be shared with

    federal agencies that have mechanisms in place to protect appropriately such information. CBP Directive 5.2.4.

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    the previous year. Compl. 26-28. While Abidor had obtained visas to these two countries,

    they were not contained in his United States passport. Instead, they were contained in a French

    passport which was also in Abidors possession. Compl. 28. Abidor was instructed to bring

    his belongings to the caf car for further inspection. Compl. 29.

    Among Abidors belongings were several electronic devices, including his laptop

    computer, digital camera, two cellular telephones, and an external computer hard drive. Compl.

    24. The officer removed Abidors laptop computer from one of his bags, turned it on, and

    ordered Abidor to enter his password, which he did without objection. Compl. 30. The officer

    inspected the laptop, focusing apparently on certain pictures Abidor had saved that depicted

    rallies of Hamas and Hezbollah, Compl. 32, both of which were designated by the State

    Department as terrorist organizations. See Office of the Coordinator for Counterterrorism,

    Country Reports on Terrorism 2008, Terrorist Organizations, U.S. Dept of State (April 30,

    2009), http://www.state.gov/j/ct/rls/crt/2008/122449.htm. When Abidor was asked why he was

    interested in these images, Abidor explained that his specific area of research for his Ph.D.

    degree is the modern history of Shiites in Lebanon, Compl. 32, in which Hezbollah openly

    operates. Compl. 32. Even if this may have explained the pictures of Hezbollah, it did not

    explain why Abidor saved the pictures of Hamas, a terrorist organization not composed of

    Shiites and not based in Lebanon.

    The CBP officer who was interviewing Abidor ordered [him] to write down his

    password [to the laptop], and Abidor complied. Compl. 33. Abidor alleges, on information

    and belief, that his laptop was searched during the five hours from the time he was stopped until

    he was released. Compl. 41. In particular, he alleges that at a minimum, one movie and a

    document related to his dissertation were viewed. Compl. 41. His laptop was retained by CBP

    for further inspection by ICE. Compl. 43. His camera and two cell phones were returned to

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    him at the border search site. Compl. 44. One of his cell phones was returned with a scratch

    on the back of the phone near the battery, suggesting that someone had tried to open it. Compl.

    44. Abidors laptop and external drive were returned to him eleven days later by mail. Compl.

    48. It appeared to him that both the laptop and external drive had been physically opened and

    that various files on the laptop and external drive had been viewed. Compl. 49.

    Some files opened and examined by the officers included highly

    private and expressive materials that reveal intimate details about

    Mr. Abidors life, such as his personal photos, a transcript of a chatwith his girlfriend, copies of email correspondence, class notes,

    journal articles, his tax returns, his graduate school transcript, and

    his resume. At the time his laptop was detained, it was configuredto automatically allow access to his online email and social

    networking accounts, raising the possibility that border agentssearched through Mr. Abidors stored correspondence andcommunications as well.

    Compl. 51. The complaint also alleges on information and belief that one or more agencies

    copied Abidors laptop and external drive, transmitted the contents of both devices to other

    agencies, and retained copies as well. Compl. 52-54.

    Abidor claims that he now self-censors the information he stores on his computer

    including the notes he might otherwise take in connection with his academic researchand

    warns those he interviews that his notes and any documents they provide to him might be viewed

    by border officials. Compl. 62. This has change[d] the way he conducts research and caused

    him to fear that interviewees will be less candid and share less information and fewer documents

    with him than they would have otherwise. Compl. 63.

    C. The Association Plaintiffs AllegationsThe NACDL alleges that many of its memberscriminal defense attorneys resident

    throughout the countryroutinely travel abroad for professional purposes and bring with them

    electronic devices containing personal, confidential, or privileged information. Compl. 69,

    7576. It contends that the ICE and CBP policies interfere with its members ability to represent

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    clients because they must take seriously the risk that the content of their electronic devices

    could be reviewed, copied, and detained. Compl. 77. This creates an ethical dilemma

    because NACDLs members have a duty to safeguard privileged and confidential information,

    which could be revealed to the federal government (a common litigation adversary for criminal

    defense attorneys) if their electronic documents are searched at the border. Compl. 79.

    NACDL alleges at least one of its member-attorneys was subject to a stop at the border. Compl.

    85-95. The complaint alleges that her computer was taken out of sight for more than 30

    minutes, presumably to complete an electronic search. Compl. 95. The NACDL member

    did not witness the CBP officers search, and the laptop was returned after the 30 minute

    period. Compl. 95.2

    The NPPA is a group of photojournalists who reside throughout the country and abroad

    and which promotes freedom of the press in all its forms, especially as that freedom relates to

    photojournalism. Compl. 99-101. It alleges that its members routinely travel abroad and

    report on stories that are of interest to the United States government, which raises the specter of

    the targeted search and detention of their electronic materials without suspicion. In particular,

    they communicate with sources who request guarantees of anonymity that they may no longer be

    able to offer if their electronic devices are subject to search. Compl. 113-14. One

    photojournalist who was riding his motorcycle was allegedly stopped at the Canadian border.

    Compl. 122-27. He had been in Canada to, among other things, take photographs for a piece

    on lighthouses and to take photos of national parks. Compl. 122. The complaint alleges that a

    CBP agent turned on the individuals computer, and peruse[d] the contents of [the] laptop for

    2The suggestion that the computer was presumably subject to a complete electronic search during the 30

    minute period it was out of her presence is purely speculative. Indeed, such a search would have violated the CBP

    directive that absent specified exigent circumstances, such searches must be conducted in the presence of the

    individual whose information is being examined. CBP Directive 5.1.4; see alsoICE Directive 8.1(2). I discuss

    this issue more fully in footnote 4.

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    A. StandingPlaintiffs bear the burden of establishing their standing to pursue the relief they seek. See

    Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The irreducible constitutional

    minimum of standing requires a plaintiff to show that it has suffered a concrete and

    particularized injury in fact which is actual or imminent, not conjectural or hypothetical, that

    there is a causal connection between the injury and the defendants conduct, and that the injury

    will likely be redressed by a favorable decision. Id. at 560. The law of standing is built on

    separation-of-powers principles and, as such, the standing inquiry is especially rigorous when

    reaching the merits of the dispute would force [the court] to decide whether an action taken by

    one of the other two branches of the Federal Government was unconstitutional. Raines v. Byrd,

    521 U.S. 811, 819-20 (1997).

    A threatened injury must be certainly impending to constitute injury in fact, and []

    [a]llegations of possible future injury are not sufficient. Clapper v. Amnesty Intl USA, 133

    S.Ct. 1138, 1147 (2013) (second alteration in original) (internal quotation marks omitted). While

    Clapperacknowledges that in some instances standing has been found based on a substantial

    risk that the alleged harm will occur, id.at 1150 n.5, the plaintiffs cannot prevail under either

    because there is not a substantial risk that their electronic devices will be subject to a search or

    seizure without reasonable suspicion.3 Moreover, whenever an association asserts standing

    solely as the representative of its members it must allege that its members, or any one of them,

    are suffering immediate or threatened injury as a result of the challenged action of the sort that

    would make out a justiciable case had the members themselves brought suit. Warth v Seldin,

    422 U.S. 490, 511 (1975).

    3A more relaxed standard may be appropriate where the challenges to the enforcement against a plaintiff of

    a traditional punitive statute, whether civil or criminal, because of the presumption that the Executive Branch will

    enforce such laws. See Hedges v. Obama, 724 F.3d 170, 201 (2d Cir. 2013).

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    Relying on records released by the CBP through the Freedom of Information Act (FOIA),

    the complaint alleges that 6,500 people, less than 3,000 of whom were U.S. citizens, had their

    electronic devices subjected to search at the U.S. border between October 1, 2008 and June 2,

    2010. Compl. 1, 20. The complaint goes on to allege that, over the seven month period

    between October 28, 2008 and June 9, 2009, CBP detained over 220 electronic devices carried

    by international travelers. Compl. 20. This comes to a fraction less than one a day. The

    complaint, however, does not provide the information necessary to place these numbers in

    context. Nevertheless, such information is readily available.

    Statistics compiled and published by the CBP in 2006 indicate that [o]n a typical day,

    more than 1.1 million passengers and pedestrians . . . are processed at the nations borders.

    Securing Americas Borders at Ports of Entry, U.S. Customs and Border Protection, 2 (Sept.

    2006), https://www.hsdl.org/?view&did=469950.4 Using that figure, fewer than one in a million

    electronic devices were detained by the CBP. Stated another way, there is less than a one in a

    million chance that a computer carried by an inbound international traveler will be detained.

    Even in the case of a quick look and search of a computer, in which CBP officers simply have a

    traveler boot the laptop up, and look at what is inside, United States v. Arnold, 533 F.3d 1003,

    1009 (9th Cir. 2008), as opposed to a more comprehensive forensic search that would

    presumably occur if a computer were detained, the number of U.S. citizens subject to such a

    4A judge can take judicial notice, on his own, of a fact that can be accurately and readily determined from

    sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b), (c). The Court of Appeals for the

    Ninth Circuit appears to have done just that in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013). Indeed, the

    opening line in its opinion begins with the observation that [e]very day more than a million people cross Americanborders with Mexico and Canada to functional borders at airports such as Los Angeles (LAX), Honolulu (HNL),

    New York (JFK, LGA), and Chicago (ORD, MDW). Id. at 956. Moreover, the defendants have submitted a

    declaration from the Director of the Program Analysis and Measures Branch within the Policy, Program Analysis

    and Evaluation Division of the Office of Field Operations of the CBP, in which he declares that according to CBP

    systems 590 million inbound travelers crossed the border between October 1, 2008 and June 2, 2010. Riley Decl.

    1, 4. The plaintiffs do not dispute this figure. Instead, they argue that [m]atters outside of the pleadings may not be

    considered on a motion to dismiss under Rule 12(b)(6). Pls. Br. 3 n.1. Nevertheless, matters outside the

    pleadings, of which judicial notice may be taken, may be considered. 5C Charles Alan Wright, Arthur R. Miller &

    Mary Kay Kane, Federal Practice and Procedure, 1367 (3d ed. 1998); see also Roberts v. Babkiewicz, 582 F.3d

    418, 419 (2d Cir. 2009).

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    search comes to approximately 4.9 per day, or less than a five in a million chance that their

    computer will be subject to any kind of search. Even if both U.S. citizens and aliens are counted,

    there is about a 10 in a million chance that such a search will take place. See United States v.

    Ickes, 393 F.3d 501, 506-07 (4th Cir. 2005) (rejecting as far-fetched the suggestion that any

    person carrying a laptop computer . . . on an international flight would be subject to a search of

    the files on the computer hard drive[,] because [c]ustoms agents have neither the time nor the

    resources to search the contents of every computer).

    Care must be taken, however, not to conflate the number of searches at the border with

    the number of those searches that were undertaken without reasonable suspicion. The figures

    that the complaint cites overstate the odds of a suspicionless search, which plaintiffs allege

    violates the Constitution, because there is an even more remote chance that such a search would

    take place without suspicion. United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013), a case

    upon which the plaintiffs rely, is instructive. The defendant there moved to suppress evidence

    that was obtained as a result of a forensic examination of his computer after an initial search at

    the border [of his computer] turned up no incriminating material. Id. at 956. Only after

    Cottermans laptop was shipped almost 170 miles way and subjected to a comprehensive

    forensic examination was incriminating evidence discovered. Id.The Ninth Circuit held that

    the legitimacy of the initial search of Cottermans electronic devices at the border is not in

    doubt, because the searching officer merely turned on the devices and opened and viewed

    image files while the Cottermans waited to enter the country. Id.at 960.

    Significantly, while the Ninth Circuit held that reasonable suspicion for the more

    comprehensive forensic examination was required, it acknowledged that the governmentfor

    nowdoes not have the time or resources to seize and search the millions of devices that

    accompany the millions of travelers who cross our borders. Id. at 966. Even though the

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    regulations authorize such searches to take place without reasonable suspicion, the Ninth Circuit

    observed that as a matter of commonsense and resources, it is only when reasonable suspicion is

    aroused that such searches will take place. Cotterman, 709 F.3d at 967 n.14; see alsoUnited v.

    Ickes, 393 F.3d 501, 507 (4th Cir. 2005) (As a practical matter, computer searches are most

    likely to occur whereas herethe travelers conduct or the presence of other items in his

    possession suggest the need to search further.). Indeed, in Cotterman, the Ninth Circuit held

    that the challenged searched was based on reasonable suspicion. Id. at 968-70. So too is the

    search of the individual plaintiff in this case, Pascal Abidor.

    The Ninth Circuits apparent concern was not with an ongoing practice of suspicionless

    comprehensive forensic computer searches of the kind it held intrudes upon privacy and dignity

    interests to a far greater degree than a cursory search at the border. Id.at 966. Rather, although

    it acknowledged that for now such searches were beyond the governments resources, it was

    the potential unfettered dragnet effect that [was] troublesome. Id. While the procedural

    posture of the Cotterman casean appeal from an order granting the defendants motion to

    suppressprovided an occasion for the Ninth Circuit to address the threshold issue whether

    reasonable suspicion was required for the search that took place in that case, the procedural

    posture of the present case makes such consideration inappropriate.

    An action for declaratory judgment does not provide an occasion for addressing a claim

    of alleged injury based on speculation as to conduct which may or may not occur at some

    unspecified future date. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Diamond

    v. Charles, 476 U.S. 54, 66 (1986) (rejecting standing based on unadorned speculation); City

    of Los Angeles v. Lyons, 461 U.S. 95, 105, 111 (1983) (denying standing to an individual seeking

    to challenge police chokehold because it was only speculative that the plaintiff would be

    subjected to chokehold); OShea v. Littleton, 414 U.S. 488, 497 (1974) (denying standing to

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    residents who sought injunctive relief against judges who allegedly engaged in a pattern and

    practice of discriminatory practices on the ground that the threat to plaintiffs from this

    discrimination was only speculation and conjecture).

    InBaur v. Veneman, 352 F.3d 625 (2d Cir. 2003), upon which plaintiffs rely, a divided

    three judge panel addressed the narrow question of whether an increased risk of contracting a

    food-borne illness from the consumption of downed livestock constitutes a cognizable injury-in-

    fact. Id. at 631. While that case acknowledged that the courts of appeals have generally

    recognized that threatened harm in the form of an increased risk of future injury may serve as

    injury-in-fact, it did not decide as a matter of law whether enhanced risk generally qualifies as

    sufficient injury to confer standing. Id.at 633-34. It held that [i]n the specific context of food

    and drug safety suits, like in environmental cases, such injuries are cognizable for standing

    purposes. Id. at 634. This analysis, however, has only been applied in a narrow range of

    cases, where an agencys failure to conform to a statutory mandate has resulted in the

    plaintiffs exposure to a greater risk of an either difficult or impossible to remedy injury that the

    statute explicitly sought to prevent, and then, only in the context of exposure to environmental

    conditions or harmful products. Nat. Council of La Raza v. Gonzales, 468 F. Supp. 2d 429, 440

    (E.D.N.Y. 2007).

    Baur appears to mark a narrow exception to the rule that probabilistic injury does not

    provide a basis for Article III standing. As Judge Livingston has observed, [p]robabilistic

    injury of the kind on which Baurrelied, has never been recognized by the Supreme Court or

    this Circuit as sufficient as a general matter to constitute injury in fact for the purposes of Article

    III standing, and for good reasonas the D.C. Circuit has noted, were all purely speculative

    increased risks deemed injurious, the entire requirement of actual or imminent injury would be

    rendered moot, because all hypothesized, non-imminent injuries could be dressed up as increased

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    risk of future injury. Amnesty Intl USA v. Clapper, 667 F.3d 163, 198 (2d Cir. 2011)

    (Livington, J, dissenting from denial of rehg en banc) (internal quotation marks omitted). Such

    an approach she observed, would threaten grossly to distend the Judicial Branch's proper role of

    deciding actual cases or controversies, rendering almost any governmental action or inaction at

    least potentially subject to judicial review so long as a court was willing to deem it reasonably

    likely that a plaintiff might one day be affected as a result. Id.5

    Moreover, even assuming the allegations in the complaint established standing, closely

    related principles of declaratory judgment law warrant dismissal. Specifically, [a] declaratory

    judgment, like other forms of equitable relief, should be granted only as a matter of judicial

    discretion, exercised in the public interest. It is always the duty of a court of equity to strike a

    proper balance between the needs of the plaintiff and the consequences of giving the desired

    relief. Eccles v. Peoples Bank of Lakewood Vill., 333 U.S. 426, 431 (1948). Thus, [e]specially

    where governmental action is involved, courts should not intervene unless the need for equitable

    relief is clear, not remote or speculative. Id.; see also 10B Charles Alan Wright, Arthur R.

    Miller & Mary Kay Kane, Federal Practice and Procedure, 2762 (3d ed. 1998) (The Supreme

    Court has frequently, although not invariably, indicated a marked reluctance to have important

    issues of public law resolved by declaratory judgments.). Such reluctance is particularly

    warranted as to the association plaintiffs because the special protections afforded to attorneys

    and journalists makes it impossible to determine whether, or to what extent, the directives on

    their face will actually result in any search, much less one without reasonable suspicion.

    Significantly, in the context of the present case, delaying a decision provides an

    opportunity for Congress and the Executive Branch to respond to any abuses that should develop

    5 The petition for rehearing in Amnesty Intl USA v. Clapper was denied by an equally divided vote.

    Amnesty Intl USA v. Clapper, 667 F.3d at 163-64 (2d Cir. 2011). Judge Livingstons opinion was joined by then-

    Chief Judge Jacobs, and Judges Cabranes, Raggi, and Wesley. Id. at 164. The Supreme Court granted certiorari,

    132 S.Ct. 2531 (2012), and reversed the panel opinion in Clapper v. Amnesty Intl USA, 133 S.Ct. 1138 (2013).

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    as a consequence of the operation of the current CBP and ICE directivesdirectives which

    themselves seek to regulate and circumscribe the conduct of searches of electronic devices. See

    Yule Kim, Cong. Research Serv. RL34404, Border Searches of Laptop Computers and Other

    Electronic Storage Devices, 13-14 (2009) (describing recent legislative proposals to limit border

    searches of electronic devices). Indeed, a careful reading of the CBP and ICE directives

    indicates that these agencies are sensitive to the privacy and confidentiality issues posed by

    border searches of electronic devices. They constitute efforts to cabin the nature and extent of

    such searches, and they contain significant precautionary measures to be taken with respect to

    the handling of privileged and other sensitive materials that are described earlier. CBP Directive

    5.2; ICE Directive 8.6; see supradiscussion at 6-7.

    Thus, upon the assertion by an individual that certain information is protected by

    attorney-client or attorney work product privilege, or if it appears that the electronic device

    contains such material, both the CBP and ICE directives preclude any search of an electronic

    device without seeking advice from the agencys Chief Counsel, who must make a record of

    such consultation in the system of records, and coordinate with the U.S. Attorneys Office as

    appropriate. CBP Directive 5.2.1; see also ICE Directive 8.6(2)(b). Indeed, I read these

    particular directives as containing a significant threshold requirement. Specifically, even before

    consulting legal counsel within the agency, a CBP or ICE officer must suspect that such material

    constitutes evidence of a crime or otherwise pertains to a determination within the jurisdiction of

    the CBP or ICE. Id. Moreover, reasonable suspicion and probable cause are required for certain

    conduct to be undertaken, other than the search itself. See, e.g., CBP Directive 5.3.2.3, 5.4.1.1;

    ICE Directive 8.4(2)(b), 8.5(1)(a). Significantly, some of the reported cases indicate that

    search warrants were obtained for comprehensive forensic searches, even though not required by

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    the directives. See, e.g., United States v. Stewart, 729 F.3d 517, 521 (6th Cir. 2013); United

    States v. Arnold, 533 F.3d 1003, 1005 (9th Cir. 2008).

    In sum, declaratory relief is not appropriate because is it unlikely that a member of the

    association plaintiffs will have his electronic device searched at the border, and it is far less

    likely that a comprehensive forensic search would occur without reasonable suspicion. This is

    particularly true with respect to electronic devices of lawyers and journalists, among others, who

    have been singled out for special protection. See CBP Directive 5.2; ICE Directive 8.6.

    Indeed, Pascal Abidor, the only individual plaintiff in the case, who claims to have had his

    computer subject to a forensic search upon his entry into the United States from Canada, by his

    own admission travels frequently between the United States and Canada, was stopped two more

    times at the border. His was not computer subject to a search of any kind on either occasion.

    Compl. 58; Abidor Decl. 7; Allen Decl 11.6

    Nor is there any merit to Abidors claim that he has standing for the additional reason

    that he seeks expungement of information he believes DHS may have retained from his

    electronic devices. Pls. Br 18. He argues this is an ongoing injury, and that the Second Circuit

    has recognized a demand for expungement provides a basis for standing. Pls. Br. 18. The

    6The circumstances surrounding the last search, which took place December 22, 2010, are not spelled out

    in the complaint. Instead, they are described in post-complaint declarations by Abidor and Charles Allen, the

    Supervisory CBP Officer at the Port of Champlain, New York, where the events occurred. Abidor Decl.; Allen

    Decl. Abidor alleges only that [a]n agent took two cell phones out of sight. Abidor Decl. 7. In a reply

    declaration, Officer Allen acknowledges that the two cell phones were taken pursuant to general CBP practice with

    respect to secondary inspection, that all electronic devices, including cell phones, are requested of the individuals

    being inspected at the start of the inspection so that the devices cannot be used during the inspection process. Allen

    Decl. 7-9. Allen goes on to say [a]t no time . . . were the cell phones searched, nor was the informationcontained in them examined or copied in any manner. Allen Decl. 11. The only inconsistency between the two

    affidavits is Allens assertion that the cell phones were simply placed on the secondary work station out of Pascals

    and [his fathers] reach but within their plain view. Allen Decl. 11. This is consistent with the CBP directive that

    [s]earches of electronic devices should be conducted in the presence of the individual whose information is being

    examined unless there are national security, law enforcement, or other operational considerations that make it

    inappropriate to permit the individual to remain present. CBP Directive 5.1.4; see also ICE Directive 8.1(2).

    Passing over the propriety of the submission of these affidavits in the context of a motion to dismiss, and accepting

    Abidors version of the events, it does not establish that any search occurred. Indeed, the fact that this incident is the

    only one that plaintiffs have chosen to document during the three years since they filed the complaint, only confirms

    that it is unlikely that any of the plaintiffs will have their electronic devices searched at the border.

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    problem with this argument is that under the regulations he is entitled to have the materials

    destroyed. CBP Directive 5.3.2.4. Indeed, the Department of Justice attorney conceded at oral

    argument that the materials would have been destroyed but for the fact that cases had been

    filed, and that they were being retained as potentially relevant to those cases. Hrg Tr., 32:4-29

    (June 8, 2011). Under these circumstances, the fact that Abidor seeks expungement does not

    provide a basis to challenge a regulation which provides him with that remedy. See Cherry v.

    Postmaster Gen., 332 F. Supp. 785, 789 (S.D.N.Y. 1971), affd460 F.2d 1063 (2d Cir. 1972).

    Abidor could have established standing in this case by adding a cause of action for

    damages based on his claim that he was subject to an unreasonable search. Such a cause of

    action would have provided the occasion for a trial or a motion for summary judgment that

    would have fully developed the record with respect to both the initial quick look search and

    subsequent forensic search. No such action is alleged. Instead, it appears that Abidor was

    chosen to participate as a co-plaintiff because, unlike any member of the association plaintiffs,

    his computer was subject to a search pursuant to the directives that are challenged here.

    Nevertheless, as the Supreme Court held in City of Los Angeles v. Lyons, even given past harm,

    [a]bsent a sufficient likelihood that [the plaintiff] will again be wronged in a similar way, [he] is

    no more entitled to an injunction than any other citizen. 461 U.S. at 111.

    Plaintiffs try to bolster their claim for standing in several ways. The NACDL alleges that

    its members routinely travel abroad to collaborate with foreign colleagues and/or as part of their

    representation of their clients. Pls. Br. 8. They almost always travel with electronic devices

    because those devices are necessary to take notes, record interviews, perform legal research,

    draft legal documents, retrieve case files, and communicate. Pls. Br. 8. The NACDL goes on

    to allege that because its members have an ethical duty to safeguard attorney-client and other

    privileged information, they must spend time and money to mitigate the harm that future

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    searches will cause. Pls. Br. 8 (internal citation omitted). Similarly, the NPPA argue that the

    challenged policies undermine NPPA members ability to guarantee confidentiality to the

    sources they communicate with abroad. Pls. Br. 9. Consequently, [t]he risk [their] sources

    identities will be revealed to border agents . . . will lead some sources who otherwise would have

    shared information or been recorded, photographed, or videotaped to decline to do so. Pls. Br.

    9.

    The individual plaintiff, Pascal Abidor, alleges that he plans to undertake additional

    travel to conduct research in foreign countries, including Syria and Lebanon, Pls. Br. 7,

    apparently unconcerned about the searches to which his computer may be subject in those

    countries. He argues that, at the expense of his educational goals, he has expended time and

    money to minimize future searches at the United States border. Pls. Br. 7. Thus, [h]e now

    travels with less information on his computer, self-censors what photographs he downloads, and

    backs up onto an external hard drive and then deletes materials he fears that border officials may

    misconstrue. Pls. Br. 7-8. Moreover, he asserts that [h]e now avoids taking notes for his

    research and gathering materials of the type that might be misconstrued by border officials and

    warns research subjects that he cannot guarantee them confidentiality. Pls. Br. at 8.

    Because plaintiffs do not face a threat of certainly impending suspicionless border

    searches of their electronic devices, they cannot establish standing based on the measures they

    have undertaken to preserve confidentiality of the sensitive information they claim would be

    compromised as a result of the searches that the challenged directives authorize. See Clapper,

    133 S.Ct. at 1152 n.7. Indeed, laptops have only come into widespread use in the twenty-first

    century. Prior to that time, lawyers, photographers, and scholars managed to travel overseas and

    consult with clients, take photographs, and conduct scholarly research. No one ever suggested

    the possibility of a border search had a chilling effect on his or her First Amendment rights.

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    While it is true that laptops may make overseas work more convenient, the precautions plaintiffs

    may choose to take to mitigate the alleged harm associated with the remote possibility of a

    border search are simply among the many inconveniences associated with international travel. In

    this regard, plaintiffs are no different than the tens of millions of international travelers who

    cross the United States border.

    More significantly, however, it is difficult to understand how a threshold requirement of

    reasonable suspicion significantly alleviates the alleged harm that plaintiffs fear. Reasonable

    suspicion is a minimal threshold standard for conducting a search. Indeed, in Cotterman, the

    Ninth Circuit reaffirmed an earlier holding that reasonable suspicion was not required for a

    quick look and unobtrusive search of laptops. Cotterman, 709 F.3d at 960, 967. The quick look

    and search in the prior case was one in which CBP officers simply had [traveler] boot [the

    laptop] up, and looked at what [he] had inside. Arnold, 533 F.3d at 1009. Moreover, such

    searches could result in further, forensic examinations where their suspicions are aroused by

    what they find or by other factors. Reasonable suspicion leaves ample room for agents to draw

    on their expertise and experience to pick up on the subtle cures that criminal activity may be

    afoot. Cotterman, 709 F.3d at 967.

    Plaintiffs must be drinking the Kool-Aid if they think that a reasonable suspicion

    threshold of this kind will enable them to guarantee confidentiality to their sources, Pls. Br. 8-

    9, or to protect privileged information, Pls. Br. 8. Nor is this the only consideration that

    prevents them from guaranteeing confidentiality. The United States border is not the only border

    that must be crossed by those engaging in international travel. Carrying an electronic device

    outside the United States almost always entails carrying it into another country, making it subject

    to search under that countrys laws. Cotterman, 709 F.3d at 977 n.8 (Callahan, J., dissenting).

    Surely, Pascal Abidor cannot be so nave to expect that when he crosses the Syrian or Lebanese

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    border that the contents of his computer will be immune from searches and seizures at the whim

    of those who work for Bashar al-Assad or Hassan Nasrallah. Indeed, the New York Times

    recently reported on the saga of David Michael Miranda who was detained for nine hours by

    British authorities while on a stop in Londons Heathrow airport during a trip from Germany to

    Brazil. Charlie Savage & Michael Schwartz,Britain Detains the Partner of a Reporter Tied to

    Leaks, The New York Times, A4 (Aug. 19, 2013). Miranda was carrying documents intended to

    be passed to a British journalist. Id. Those documents were stored on encrypted thumb drives

    a data storage deviceand were seized. Id. The stop and search were undertaken pursuant to

    the United Kingdom Terror Law Schedule 7, which authorizes such searches without reasonable

    suspicion. U.K. Terror Law Schedule 7 8.

    This is enough to suggest that it would be foolish, if not irresponsible, for plaintiffs to

    store truly private or confidential information on electronic devices that are carried and used

    overseas. There is yet another reasonthe risk associated with the loss of laptop computers. A

    recent comprehensive study of airports and business travelers, sponsored by Dell Inc., reported

    that [b]usiness travelers in the U.S., Europe and [the] United Arab Emirates lose or misplace

    more than 16,000 laptops per week. Airport Insecurity: The Case of the Lost & Missing

    Laptops, Ponemon Institute LLC, 3 (July 29, 2008),

    http://www.dell.com/downloads/global/services/dell_lost_laptop_study_emea.pdf. These

    laptops were either lost or stolen. Id. One of the many suggestions that the Dell study makes to

    travelers is to [t]hink twice about the information you carry on your laptop. Id.at 8. And it

    concludes with the commonsense query: Is it really necessary to have so much information

    accessible to you on your computer? Id.

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    B. The MeritsWhile I do not believe that the plaintiffs have standing, I discuss the merits of their

    claims in order to complete the record and avoid the possibility of an unnecessary remand in the

    event that the Court of Appeals shall disagree. I agree with the Ninth Circuit that reasonable

    suspicion is not required to conduct a cursory manual search of an electronic device at the

    border. Cotterman, 709 F.3d at 960. I also agree with the Ninth Circuit that the transport of an

    electronic device away from the border to perform a forensic search is not a dispositive fact, and

    the extended border search doctrine does not fit th[at] search. Id.at 962. Finally, I agree with

    the reasons stated in the thoughtful and considered opinion of Judge Wilkinson in United States

    v. Ickes, 393 F.3d 501 (4th Cir. 2005), which the Ninth Circuit adopted in United States v.

    Arnold, 533 F.3d 1003, 1010 (9th Cir. 2008) (OScannlain, J.), for refusing to carve out a First

    Amendment exception to the border search doctrine.7 I focus here on the issue of whether a

    comprehensive forensic search can only be undertaken based on reasonable suspicion.

    The Fourth Amendment provides that [t]he right of the people to be secure in their

    persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

    violated . . . . U.S. Const. amend. IV. Whether a search or seizure is unreasonable depends

    upon all of the circumstances surrounding the search or seizure and the nature of the search or

    seizure itself. The permissibility of a particular law enforcement practice is judged by balancing

    its intrusion on the individuals Fourth Amendment interests against its promotion of legitimate

    governmental interests. United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)

    (internal quotation marks and citations omitted). The Governments interest in preventing the

    entry of unwanted persons and effects is at its zenith at the international border. United States

    7 While the en banc opinion in Cotterman limited the scope of the holding in Arnold regarding the

    restrictions the Fourth Amendment places on comprehensive forensic searches of electronic devices at the border,

    Cottermandid not upset the First Amendment holding inArnold.

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    v. Flores-Montano, 541 U.S. 149, 15253 (2004). Accordingly, the Fourth Amendments

    balance of reasonableness is qualitatively different at the international border than in the interior.

    Routine searches of the persons and effects of entrants are not subject to any requirement of

    reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a

    warrant on less than probable cause. Montoya de Hernandez, 473 U.S. at 538 (internal citations

    omitted).

    Border searches . . . from before the adoption of the FourthAmendment, have been considered to be reasonable by the

    single fact that the person or item in question had entered into our

    country from outside. There has never been any additionalrequirement that the reasonableness of a border search depended

    on the existence of probable cause. This longstanding recognitionthat searches at our borders without probable cause and without awarrant are nonetheless reasonable has a history as old as the

    Fourth Amendment itself.

    United States v. Ramsey, 431 U.S. 606, 619 (1977). Travelers may be so stopped in crossing an

    international boundary because of national self-protection reasonably requiring one entering the

    country to identify himself as entitled to come in and his belongings as effects which may be

    lawfully brought in. Carroll v. United States, 267 U.S. 132, 154 (1925); see alsoUnited States

    v. Singh, 415 F.3d 288, 293 (2d Cir. 2005) (same).

    Professor LaFave observes that, [a]lthough it has sometimes been said that mere entry

    into the United States gives rise to probable cause for a search, this is hardly the case, for

    certainly the great majority of persons entering the country are not engaged in the smuggling of

    contraband. 5 Wayne LaFave, Search and Seizure: A Treatise of the Fourth Amendment)

    10.5(a) (4th Ed. 2011-12). Instead, he continues, [t]he point is . . . that probable cause is not

    required for such a search. Id. Similarly [i]t is also sometimes said in the cases that mere

    suspicion is needed to conduct a routine border search, which would seem to require at least

    some knowledge identifying an individual as a suspect, with that information being operated on

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    by experienced customs agents. Id. (internal quotation marks omitted). Nevertheless, this is

    likewise not the case, and it is more accurate to say that even mere suspicion is not required. Id.

    (internal quotation marks omitted). Indeed, [a]ny person or thing coming into the United States

    is subject to search by that fact alone, whether or not there be any suspicion of illegality directed

    to the particular person or thing to be searched. Id. (internal quotation marks omitted).8

    The border search doctrine is an example of what is known as an administrative or

    special needs exception to traditional threshold requirements of probable cause and reasonable

    suspicion. See, e.g., Natl Treasury Emps. Union v. Von Raab, 489 U.S. 656, 679 (1989);

    Skinner v. Ry. Lab. Exec. Assn, 489 U.S. 602, 633-34 (1989). The leading case outlining the

    considerations underlying administrative search exceptions is Camara v. Municipal Court, 387

    U.S. 523 (1967). There, the Supreme Court upheld another kind of administrative search, the

    health and safety exception of buildings, upon reasoning which is equally applicable to the

    border search. LaFave, 10.5(a). In so doing, it concluded that:

    no ready test for determining reasonableness other than by

    balancing the need to search against the invasion which the search

    entails. But we think that a number of persuasive factors combineto support the reasonableness of area code-enforcement

    inspections. First, such programs have a long history of judicial

    and public acceptance. Second, the public interest demands that all

    dangerous conditions be prevented or abated, yet it is doubtful thatany other canvassing technique would achieve acceptable results.

    Many such conditions-faulty wiring is an obvious example-are not

    observable from outside the building and indeed may not beapparent to the inexpert occupant himself. Finally, because the

    inspections are neither personal in nature nor aimed at the

    discovery of evidence of crime, they involve a relatively limited

    invasion of the urban citizen's privacy.

    8The only recognized exception to this broad holding, which has been carved out by the Courts of Appeals,

    relates to strip and body cavity searches. SeeUnited States v. Asbury, 586 F.2d 973 (2d Cir. 1978); see alsoLaFave

    10.5(b) (collecting cases). The Supreme Court, however, has left open the issue of what level of suspicion, if any

    is required for nonroutine border searches, such as strip, body cavity, or involuntary x-ray searches. Montoya de

    Hernandez, 473 U.S. at 546 n.4. Nevertheless, the Supreme Court has made it clear that the need for particularized

    reasonable suspicion does not apply to highly intrusive searches of property at the border. Flores-Montano, 541

    U.S. at 152.

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    Camara, 387 U.S. at 536-37.

    Border searches, likewise, have a long history of judicial and public acceptance. Id.at

    537. Indeed, border searches . . . from before the adoption of the Fourth Amendment, have

    been considered to be reasonable by the single fact that the person or item in question had

    entered into our country from outside. Ramsey, 431 U.S. at 619. Such searches were first

    authorized by the same Congress which proposed the Bill of Rights. Flores-Montano, 541 U.S.

    at 153. Moreover, as Professor LaFave observes, [c]entral to the Camaraholding was the fact

    that the administrative search there at issue was directed at a problem as to which there was a

    strong public interest in effective preventive measures and which could not be dealt with

    effectively if the authorities were required to have probable cause [or reasonable suspicion] on a

    case-by-case basis. LaFave, 10.5(a). This is equally true of the searches laptop computers

    and other similar electronic devices at the border.

    Laptop searches have proven essential to detecting people and

    materials that should be blocked from entering the United States.Officers have discovered video clips of improvised explosive

    devices being detonated, a martyrdom video and other violent

    jihadist materials. In addition, these searches have uncoveredscores of instances of child pornography, including a home movie

    of children being sexually assaulted.

    Michael Chertoff, Searches Are Legal, Essential, USA Today, July 16, 2008, at A10.

    As in Camara, it is doubtful that any other canvassing technique would achieve

    acceptable results. Camara,387 U.S. at 537. [C]ustoms officials do not usually have specific

    knowledge of a person or goods before their inspection. In the absence, therefore, of a broad

    power of search at the border, officials would commonly have to rely on the cooperation of those

    they question. Judith B. Ittig, The Rites of Passage: Border Searches and the Fourth

    Amendment, 40 Tenn L. Rev. 329, 331 (1973).

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    The final consideration in Camera was that the inspection at issue in that case were not

    aimed at the discovery of evidence, and involved a relatively limited invasion of . . . privacy.

    A comprehensive forensic search of a computer, whether a desktop or a laptop, involves a

    significant invasion of privacy. United States v. Galpin, 720 F.3d 436, 447 (2d Cir. 2013); see

    also United States v. Mitchell, 565 F.3d 1347, 1352 (11th Cir. 2009). The invasion of privacy

    occasioned by such a border search, however, like the search of luggage, briefcases, and even

    clothing worn by a person entering the United States, is mitigated by other factors that are not

    present in a purely domestic context. As Professor LaFave observes, because the individual

    crossing a border is on notice that certain types of searches are likely to be made, his privacy is

    less invaded by those searches. LaFave, 10.5(a). Thus, [t]he individual traveler determines

    the time and place of the search by his own actions, and he thus has ample opportunity to

    diminish the impact of that search by limiting the nature and character of the effects which he

    brings with him. Id.9 Indeed, because of the large number of laptop computers (close to a

    million per year) that are lost by travelersnumbers that far exceed the comparative handful of

    laptops that are searched at the borderthe sensible advice to all travelers is to [t]hink twice

    about the information you carry on your laptop, and to ask themselves: Is it really necessary to

    have so much information accessible to you on your computer? Airport Insecurityat 8.

    The Second Circuit has not addressed the issue of border searches of electronic devices.

    But in United States v. Irving, No. S3-03-0633, 2003 WL 22127913, at *5 (S.D.N.Y. Sept. 15,

    2003), Judge Kaplan held that laptop computers are analogous to other closed containers, which

    may be inspected without reasonable suspicion or probable cause in a routine border search.

    9 The element of choice is crucial. The fact that border searches occur at fixed times and checkpoints

    makes them inherently less intrusive; a person with advance notice of the location of a permanent checkpoint has an

    opportunity to avoid the search entirely, or at least to prepare for, and limit, the intrusion on her privacy.

    Cotterman, 709 F.3d at 978 (Callahan, J., dissenting) (citing Mich. Dept of State Police v. Sitz, 496 U.S. 444, 463

    (1990) (Stevens, J., dissenting).

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    There, customs agents conducted a search of undeveloped film in a disposable camera and two

    3.5 inch computer diskettes. Id. at *2. In rejecting that such a search required reasonable

    suspicion, Judge Kaplan observed:

    Inspection of the contents of closed containers comes within thescope of a routine border search and is permissible even in the

    absence of reasonable suspicion or probable cause. Indeed, the

    opening of luggage, itself a closed container, is the paradigmaticroutine border search. Hence, the agents were entitled to inspect

    the contents of the diskettes even absent reasonable suspicion.

    Indeed, any other decision effectively would allow individuals torender graphic contraband, such as child pornography, largely

    immune to border search simply by scanning images onto a

    computer disk before arriving at the border.

    Id.at *5. Because the Second Circuit upheld the validity of the search on the ground that it was

    supported by reasonable suspicion, it did not reach the issue resolved by Judge Kaplan. United

    States v. Irving, 452 F.3d 110 (2d Cir. 2006).

    Outside of this circuit, three Courts of Appeals have addressed the question. The Third

    and Fourth Circuits held that searches of electronic devices constitute routine border searches.

    United States v. Linarez-Delgado, 259 F. Appx 506, 508 (3d Cir. 2007) (Data storage media

    and electronic equipment, such as films, computer devices, and videotapes, may be inspected and

    viewed during a reasonable border search.); United States v. Ickes, 393 F.3d at 50607

    (rejecting defendants argument that expressive materialssuch as defendants computer and

    disks, which contained child pornographyare shielded by the First Amendment from routine

    border searches).

    Nevertheless, the Ninth Circuit recently held that border searches of electronic devices

    may require reasonable suspicion in some circumstances. United States v. Cotterman, 709 F.3d

    952, 957 (9th Cir. 2013) (en banc). In that case the defendant was detained at the U.S.-Mexican

    border because of a positive hit on the Treasury Enforcement Communication System, which

    indicated that [he] was a sex offender . . . and that he was potentially involved in child sex

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    tourism. Id.at 957. The defendants two laptop computers and a digital camera were held for

    examination. Id. at 95758. Officers discovered images of child pornography after a thorough

    forensic examination of the defendants laptop. Id. at 95859.

    The Court of Appeals differentiated between what it referred to as a forensic

    examination and the quick look it had previously approved without a suspicion requirement

    in other cases. Cotterman, 709 F.3d at 96061 (citingArnold, 533 F.3d at 1009 (9th Cir. 2008)).

    The Cotterman Court relied on the question left open by the Supreme Court since United States

    v. Ramsey, 431 U.S. 606 (1972), of when a particularly offensive search might fail the

    reasonableness test. Cotterman, 709 F.3d at 963 (citingRamsey, 431 U.S. at 618 n.13). It went

    on to find that because of the volume and sensitivity of the material present on a modern laptop

    the exhaustive forensic search of a copied laptop hard drive intrudes upon privacy and dignity

    interests to a far greater degree than a cursory search at the border. Id. at 966. Because of what

    it perceived as the deeply intrusive nature of the search, the Ninth Circuit held that the forensic

    examination of [the defendants] computer required a showing of reasonable suspicion. Id. at

    968. Nevertheless, it ultimately concluded that there was reasonable suspicion to search the

    defendants laptop and therefore reversed the district courts grant of the motion to suppress. Id.

    at 970.

    As I have previously observed, the Ninth Circuit acknowledged that its opinion would not

    have any practical effect on current practices, because the extremely limited resources available

    to conduct comprehensive forensic searches necessarily limits such searches to situations where

    some level of suspicion is present. Id.at 967 n.14. I would agree with the Ninth Circuit that, if

    suspicionless forensic computer searches at the border threaten to become the norm, then some

    threshold showing of reasonable suspicion should be required. Now, however, locking in a

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    31

    particular standard for searches would have a dangerous, chilling effect as officers often split-

    second assessments are second guessed. Chertoff, Searches Are Legal, Essential.10

    This leaves one last pointAbidors as applied challenge to the quick look and

    comprehensive forensic searches of his electronic devices. There was reasonable suspicion for

    those searches. A reasonable suspicion inquiry simply considers, after taking into account all

    the facts of a particular case, whether the border official ha[d] a reasonable basis on which to

    conduct the search. Irving, 452 F.3d at 124 (quoting United States v. Asbury, 586 F.2d 973,

    97576 (2d Cir. 1978)). Reasonable suspicion is a relatively low standard and border officials

    are afforded deference due to their training and experience. See Montoya de Hernandez, 473

    U.S. at 542. InAsbury, the Second Circuit identified a number of factors that have been deemed

    significant in evaluating whether law enforcement officers have a reasonable suspicion of

    possible criminal activity, including [a]n itinerary suggestive of wrongdoing and [d]iscovery

    of incriminating matter during routine searches, Asbury, 586 F.2d at 977, both of which were

    present in this case.

    In Abidors case, CBP agents observed images of the rallies of designated terrorist groups

    (Hamas and Hezbollah) on the laptop computer of a traveler who had recently traveled to

    Lebanon. According to the State Department report in effect at the time of the search, [Hamas]

    retains a cadre of leaders and facilitators that conducts diplomatic, fundraising, and arms-

    smuggling activities in Lebanon, Syria, and other states, and was increasing its presence in the

    Palestinian refugee camps in Lebanon. See Office of the Coordinator for Counterterrorism,

    Country Reports on Terrorism 2008, Terrorist Organizations, U.S. Dept of State (April 30,

    10 The Directive also authorizes CBP agents to copy the information stored on electronic devices to

    facilitate inspection. See, e.g., CBP Directive 5.3.1; ICE Directive 8.1(4)(5). Plaintiffs argue that merely

    copying information stored on an electronic device, to permit the information to be inspected, constitutes a separate,

    invasive search. Pls. Br. 26. On the assumption that it is permissible to perform a forensic search of an electronic

    device, transferring information to a different storage device for the same sort of inspection does not transform the

    search from routine to non-routine (i.e., highly-intrusive into the dignity and privacy interests of the person

    searched).

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    2009), http://www.state.gov/j/ct/rls/crt/2008/122449.htm. Hezbollah is based in Lebanon and

    has strong influence in Lebanons Shia community. Id. When Abidor was asked why he was

    interested in these images, Abidor explained that his specific area of research for his Ph.D.

    degree is the modern history of Shiites in Lebanon, in which Hezbollah openly operates.

    Compl. 32. Even if this may have explained the pictures of Hezbollah, it did not explain why

    Abidor saved the pictures of Hamas, a terrorist organization not composed of Shiites and not

    based in Lebanon.

    Moreover, although Abidor told officers he was living in Canada, he possessed both a

    U.S. and French passport, Compl. 26, 28, a circumstance which, while perhaps innocent in

    itself, in combination with other factors may have increased the level of suspicion, especially as

    the passport containing the visas from Lebanon and Jordan was not produced initially. See

    United States v. Sokolow, 490 U.S. 1, 9 (1989) (several factors which by themselves are

    consistent with innocent travel may, taken together, amount to reasonable suspicion). The

    agents certainly had reasonable suspicion supporting further inspection of Abidors electronic

    devices.

    CONCLUSION

    The motion to dismiss is granted.

    SO ORDERED.

    Brooklyn, New York

    December 31, 2013Edward R. Korman

    Edward R. Korman

    Senior United States District Judge